1,000 words / Devolution

The current system of devolution in the UK was introduced by the Blair Government in the late 1990s. It involved the creation of new legislative and executive institutions in Scotland, Wales and Northern Ireland, and the conferral upon them of law-making and administrative powers. A key purpose of devolution is to enable parts of the country that possess distinct political and cultural identities to remain part of the Union without subjugating those individual identities.The hypothesis upon which devolution was built is that it can strengthen the Union by equipping it to accommodate diversity, a flexible structure being stronger than a brittle one. That hypothesis was tested — almost to breaking point — by the independence referendum that was held in Scotland in 2014. In Northern Ireland, devolution serves the further, and crucial, objective of fashioning a system of government capable of bridging community divisions. The technical operation of the different devolution schemes and the (significant) differences between them are important, but are beyond the scope of this post. Rather, its focus is on the general nature of devolution and on the broader insights it affords into the nature of the UK’s constitution.

One of the most striking features about the devolution system in the UK is its asymmetry. Scotland and Northern Ireland can enact legislation — including laws overriding those enacted by the UK Parliament in relation to Scotland and Northern Ireland respectively — on all matters save those that are reserved to the exclusive competence of the UK Parliament in Westminster. Wales was originally given sparser powers, being permitted to enact legislation only in relation to specific matters, although legislation currently before Parliament will bring the Welsh model into closer alignment with the other systems. England has no devolved powers at all; since the devolution system does not extend to it, it relies upon the UK Parliament and the UK Government to enact its laws and administer it. Those institutions therefore serve dual functions, as the UK but also the de facto English legislature and executive.

This asymmetry reflects what might be considered a demand-and-supply model, according to which different parts of the country are accorded a degree of autonomy that reflects what is desired. And, as desires change, greater powers can be conferred: the devolution settlements in Scotland and Wales have been significantly revised since they were first adopted, as the appetite for autonomy has grown in both countries, while the recent adjustment of the Northern Ireland model to allow for an “official opposition” in the Stormont Assembly reflects that devolution settlement’s evolution as politics in Northern Ireland moves more unambiguously into a post-conflict era. This, in turn, shows us that constitutional reform in the UK, far from being a once-in-a-generation set-piece event, is little more than an ongoing process, the flexibility of the constitution — and the ease with which it can be changed — rendering it a work-in-progress.

Among other things, this means that problems are generally fixed only when the pressure to do so becomes sufficient. It is for this reason that the “West Lothian problem” went unresolved for so long. Members of the Westminster Parliament representing non-English constituencies could thus shape English laws even though their own constituents would be unaffected (the laws affecting those outside England being made, in many fields, by devolved legislatures rather than by the Westminster Parliament). This sort of lopsidedness would be unlikely to feature in a hard-to-amend written constitution, in relation to which there would be a strong incentive to get things right first time around. But when the constitution can be changed as easily as it can in the UK, that sort of incentive is lacking. As a result, loose ends — of which the West Lothian question has served as a spectacular example — abound. Indeed, it has taken nearly two decades for the West Lothian question to be addressed through the introduction in 2015 of new “English votes for English laws” procedures in the House of Commons. They require legislation relating specifically to England to be approved not only by a majority of the whole House of Commons, but also by a majority of English MPs.

Devolution also has something significant to tell us about the UK constitution more generally when we consider its interaction with the doctrine of parliamentary sovereignty. According to that doctrine, there are no limits to the legal authority of the Westminster Parliament. (The devolved legislatures, on the other hand, have explicitly limited powers which are laid down in the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006.) From the doctrine of parliamentary sovereignty (as well as from the terms of the devolution legislation) it follows that the authority of the Westminster Parliament is undiminished by devolution. That is also made clear by the devolution legislation itself, which specifies that Westminster’s legislative powers remain unaffected. Yet, even here, recent changes have introduced a note of ambivalence. The Scotland Act 2016 acknowledges a constitutional convention — a settled practice — whereby Westminster does not normally legislate on devolved matters absent the consent of the Scottish Parliament. The 2016 Act even goes as far as to say that the Scottish Parliament and Government are “a permanent part” of the UK’s constitution, declaring that they “are not to be abolished” unless such a step is supported in a referendum in Scotland. Equivalent provision will be made in relation to Wales when the Wales Bill, currently before Parliament, is enacted.

The extent to which the 2016 Act adjusts the legal status of the Scottish devolution settlement is debatable. Acknowledging a convention about how Westminster normally uses its power is not the same thing as legally disabling Westminster from legislating on devolved matters — as the Supreme Court recognised in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. And declaring that devolved institutions are not to be abolished absent support in a referendum merely invites the questions whether, in the first place, the UK Parliament is capable of limiting its authority in such a way and whether the limits (if such they be) might not simply be jettisoned by repealing the referendum guarantee itself. But whatever the answers to those legal questions might be, the political reality is that the possibility of Westminster abolishing, or substantially undermining, the devolution settlements is virtually unthinkable. In this way, the UK’s contemporary territorial constitution serves as a vivid reminder of the fact that the UK’s constitutional arrangements are a rich amalgam of law and political practice. The legal sovereignty of the Westminster Parliament is thus forced to confront the political reality of a territorial constitution in which power has — in every practical respect — been irreversibly dispersed.

All of the posts so far published in my 1,000 words series can be found here.

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